CASES

ARGUED AND DETERMINED

IN THE

United States Circuit and District Courts.

FLASH and others v. DILLON.

(Circuit Court, E. D. Texas. October 2, 1884.)

1. REMOVAL OF CAUSE-CLAIM OF PROPERTY TAKEN UNDER EXECUTION FROM STATE COURT-STATUTORY PROCEEDING.

On September 26, 1877, F., L. & Co. recovered a money judgment against B., in Bowie.county, Texas. Some years afterwards, an execution issued upon that judgment and was levied upon a stock of goods in Texarkana. Under the statute law of Texas, D. filed her oath and claim bond, and took the property levied upon as her own. F., L. & Co. then filed their petition for removal of the proceeding by D. into the United States circuit court, they being non-residents, and the same was granted. When the cause came on to be heard in the United States court, D. moved to remand the cause. Held, that this proceeding was not such a "suit" as could be removed into the federal court unless the original suit had remained undetermined and was also removed with it.

Motion to Remand.

Culberson & Culberson, for the motion, cited 16 Wall. 190; 19 FED. REP. 49; 4 Dill. 557; 99 U. S. 80; 10 FED. REP. 406.

Todd & Hudgins and Geo. T. Todd, contra.

SABIN, J. In this case it is urged that the same has been improperly removed to this court, the same not being a "suit" within the terms of the act, and that it is virtually an appendage to the suit of Flash, Lewis & Co. v. R. Bruhn, No. 1,654, wherein judgment was rendered September 26, 1877, in the district court of Bowie county, Texas. In the state courts this class of proceedings is virtually recognized as a "suit," and so generally understood and considered by the public and the profession; but the question seems to be whether, in point of fact, it is such a "suit" as can be removed to this court, being a proceeding authorized by statute for the trial of the right of property. At first I was very much inclined to think that it was, and but for the authorities adduced should have so held. Upon the examination of authorities, however, I find that it seems to be settled that it is not such a suit as can be removed into this court unless the v.22F, no.1-1

original suit had remained undetermined, and was likewise with this removed to this court.

The case of Bank v. Turnbull, 16 Wall. 190, seems to control this case. The practice in Virginia, it is true, is somewhat different from that in our state, as there the claimant intervenes in the suit and gives two different kinds of bonds, and here he files an affidavit and gives but one kind of bond; but in all other respects it seems to be very similar to ours, and the reasoning of the court in that case is applicable to our own, and it seems to me that I ought to be bound by that decision and decide this case in accordance therewith. The court, in that case, say:

"Conceding it to be a suit and not essentially a motion, we think it was merely auxiliary to the original action,- -a graft upon it, and not an independent and separate litigation. A judgment had been recovered in the original suit, final process was levied upon the property to satisfy it, the property was claimed by Turnbull & Co., and this proceeding, authorized by the laws of Virginia, resorted to to settle the question whether the property ought to be so applied. The contest could not have arisen but for the judgment and execution, and the satisfaction of the former would have at once extinguished the controversy between the parties. The proceeding was necessarily instituted in the court where the judgment was rendered and whence the execution issued. No other court, according to the statute, could have taken jurisdiction. It was provided to enable the court to determine whether its process had, as was claimed, been misapplied, and what right and justice should be done touching the property in the hands of its officer. It was intended to enable the court, the plaintiff in the original action, and the claimant, to reach the final and proper result,—a process at once speedy, informal, and inexpensive. That it was only auxiliary and incidental to the original suit is, we think, too clear to require discussion."

See also authorities cited by the court.

The case of Poole v. Thatcherdeft, 19 FED. REP. 49, (Circuit Court, D. Minnesota, December 13, 1883,) has been also cited in support of the motion to dismiss in this case, and seems also to be in point. The case now before me is one where a judgment having been rendered some years since in the State district court of Bowie county, Texas, in favor of these plaintiffs, Flash, Lewis & Co., and against one A. Bruhn, and an execution having been levied upon personal property, the same was claimed by H. J. Dillon, and affidavit and bond filed, and returned with the execution and inventory and appraisement of the property levied upon in the possession of the defendant in the execution. After which the plaintiffs in the execution remove their cause against H. J. Dillon, claimant, before the trial of the right of property, to this court. The clerk, it is true, certifies up a copy of all the proceedings in cases No. 1,654 and No. 1,956, (Flash, Lewis & Co. v. A. Bruhn, Defendant, and Flash, Lewis & Co. v. H. J. Dillon, Claimant,) from which it appears that the judgment in the original case was rendered September 26, 1877, and that the alias execution, by virtue of which the levy was made, was dated the twenty-fourth day of January, 1882, the first one having been issued

the fourteenth of November, 1877. The plaintiffs, in their petition for removal, simply seek to remove the suit or proceeding between them and the claimant, it being conceded that no removal could be had of the original suit against A. Bruhn, the same having been fully determined in the state court. But it is claimed by plaintiffs that the suit or proceeding against H. J. Dillon, claimant, is an independent proceeding, and not having been heard and determined in said state court can be removed and heard in this court; all of which, it seems to me, depends upon the ruling of the supreme court of the United States before referred to, and in accordance with which this case must be decided.

It seems to me that this cause must be remitted to the district court of Bowie county, Texas, from whenee it came; and it is so ordered.

WILSON V. ST. LOUIS & S. F. Ry. Co. and others.1

(Circuit Court, E. D. Missouri. September 25, 1884.)

1. REMOVAL OF CASES BY A PARTY WHERE CO-DEFENDANT OR CO-PLAINTIFF IS NOT ENTITLED TO REMOVAL.

Where a non-resident party has an interest in a controversy in a state court which is separate and distinct from, and does not necessarily involve the interest of, the other defendants in the issue or the other party on the same side, he can remove the case into the federal court; but if the interests of the parties on the site of the party desiring the removal are so identified and mixed up that they must and should be decided together, and the final decree must depend upon and involve the rights of both parties, then it cannot be removed, where one of the parties on that side is a citizen of the same state as the adverse party.

2. SAME-PARTIES-CASE STATED.

A., after recovering a judgment against B., a corporation, had an execution returned nulla bona, and then took proceedings under the Missouri law to subject the stockholders to personal liability, and in those proceedings obtained an order against C., and had an execution issued against him, under which the sheriff levied upon and sold certain shares of stock standing in C.'s name on the books of a corporation called D. A. purchased some of the stock and received certificates of sale from the sheriff, and finding the stock unavailable because D. would not recognize him as a stockholder, he instituted suit in the state court to compel D. to acknowledge him as the owner of the stock, to have it registered in his name on the company's books, and to permit him to receive dividends, and he made C. a party on the ground that the stock stood in his name on D.'s books, C. filed an answer claiming that he had sold said stock and delivered the certificates therefor to the purchaser prior to the time said judgment was rendered against him and had no interest in the stock at the time of said sheriff's sale and has none now. D. and A. are citizens of Missouri, C. of New York, and, the case having been removed to this court, A. moved to remand it, held that, under the rule as above stated, the case must be remanded.

3. PRACTICE IN SUPREME COURT AS TO REMANDED CASES.

Semble, that remanded cases, if taken up, are advanced and heard out of their order in the supreme court, on motion.

1Reported by Benj. F. Rex, Esq., of the St. Louis bar.

Motion to Remand.

Jas. S. Botsford, for plaintiff.

Jas. O. Broadhead and John O'Day, for defendants.

MILLER, C. J., (orally.) The case of Wilson v. The St. Louis & San Francisco Railway Company and the Seligmans, submitted to us yesterday, on a motion to remand, was brought in the state courts. and removed here. The question is presented in this manner: Wilson, who had recovered a judgment against the Memphis, Carthage & Northwestern Railroad Company, had an execution returned "no property found," and then took proceedings under the law of Missouri concerning such cases to subject the stockholders to personal liability, and in those proceedings he obtained an order against the Seligmans, with an execution issued against them for some twenty odd thousand dollars. Under that execution the sheriff levied upon and sold certain stock standing in their names on the books of the St. Louis & San Francisco Railroad Company, and gave the usual certificates of sale. Mr. Wilson, finding that certificate unavailable, because the St. Louis & San Francisco Railroad Company would not recognize his right in the premises, filed this petition in the state court in the nature of a bill in chancery to compel the railroad company to acknowledge his interest in the stock, to have it registered on their books in his name, and to permit him to receive dividends, vote, and otherwise exercise the functions of a stockholder in that company. He also made the Seligmans parties, on the ground that the stock stood in their names on the books of the company, and averring that he had acquired their interest, and in that state of case the Seligmans filed their answer. In this they stated that they did not own the stock at the time the judgment was rendered against them, nor at the time of the sale to Wilson, but had parted with it, and that the certificates were then, and ever since had been, in the hands of persons to whom they sold, whose names they do not give; that it was sold in the ordinary business way, by indorsement with blank power of attorney; and that they do not know where it is; at all events, they assert very roundly that they have no interest in the stock itself, although it stood in their names on the books at the time of filing the answer of the railroad company.

Application was made by Seligman, as a citizen of New York, on the ground of his citizenship in that state, to transfer the case to this court, and it was done, by order of the state court. It is now moved to remand it on the ground that it was not a removable cause, and the question that is presented is rather a question of fact than any needed new construction of the law on the subject of removal, for the courts have decided-and it has been decided frequently, so that the doctrine must be pretty well established at this time-that if a non-resident party has an interest in a controversy which is separate and distinct, and does not necessarily involve the interest of the other defendants in the issue, or the other party on the same side,